Should Israel Attack Iran?

That was the topic of a conference last Friday at the American Enterprise Institute.  The three panelists who addressed this question agreed that an Iranian nuclear arsenal would be worrisome indeed, not because Iran would immediately incinerate Tel Aviv, but because it would almost certainly use its conventional forces and its terrorist infrastructure more aggressively once it enjoyed the protection of the Bomb, because an Iranian nuclear force would provoke a nuclear arms race in the middle east, and because collapse of the current regime, should it ever come, might put loose nukes into the hands of dangerous elements who are less interested than the regime in self-preservation or are less easy to identify and target.  Some people believe that if every country had a nuclear weapon, the world would be more peaceful rather than more dangerous—“More Guns, Less Crime” internationally speaking—but the panelists did not.  We survived the cold war but there were a number of close calls; given enough nukes and enough time, something very bad will happen.

John Bolton pressed the case for an Israeli attack with customary vigor, but the other two panelists were more persuasive.  Michael Rubin believed that an Israeli attack would either not succeed at all or do no more than delay the nuclear program by a year or two.  Logistics are too hard; Iranian defenses are good and getting better; the program is too advanced.  Martin Indyk argued that diplomacy could still do some good, but the impression he gave was less that of enthusiasm about the prospects for diplomatic success, which sounded pretty hopeless, but, like Rubin, of the futility of military action, leaving diplomacy as the sole alternative.

With every day, the globe rolls farther from Obama’s (and Reagan’s) dream of a nuke-free world.  Determined states can build nuclear weapons if they want to; foreign states are too divided to prevent them from doing so.  The benefits of holding nuclear weapons, in terms of short-term security and national prestige, are considerable, and they will continue to increase as American power declines and U.S. security guarantees become less credible.  The cost of developing nuclear weapons becomes, every year, a smaller portion of states’ national products and hence a smaller burden on their budgets.  We will just have to live (or die) with this state of affairs.

I was given the humble—indeed, in context, vaguely comical—task of commenting on the law (also on my panel were Edwin Williamson and Gregory Maggs).  Here is what I said.

1.  The black-letter law.

Article 51 of the UN charter permits countries to use military force in self-defense; otherwise, security council authorization is required.  Clearly, Israel will not obtain Security Council authorization, so the only question is that of self-defense.  International law, like domestic law, understands self-defense in narrow terms.  A state may act in self-defense by repelling an attack or countering an imminent attack, but self-defense does not encompass military attacks against states that merely pose a threat, however significant.

In international law, as in other fields of law, the black letter does not always tell us what we need to know.  International law can change as a result of state behavior; treaties can fall out of use, they can be ignored, customary norms can pile up in their place.  So it is legitimate to ask whether norms that recognize broader forms of self-defense have built up over the years and replaced the traditional narrow conception.

It’s a legitimate question but the answer is surely no.  The negative reaction to the invasion of Iraq is a recent precedent.  No state, as far as I know, accepted the Bush administration’s argument that the United States (or any other state) was entitled to launch preemptive attacks against states that develop WMDs and may hand them over to terrorists.  An older but very close precedent is Israel’s attack on the Osirak nuclear facility in Iraq in 1981, which was condemned as a violation of international law by the Security Council.  The only recent war that suggested movement in states’ understanding of the use of force norms was the 1999 intervention in Kosovo, which was also illegal—there was no Security Council resolution and the intervention was not in self-defense.  But the major idea that arose out of that war was that military force could be used to stop humanitarian catastrophes—not the situation in Iran today—and in any event that idea was only briefly considered before it was shot down.

There is another precedent of great importance, however, albeit a kind of non-precedent precedent.  This was Israel’s attack on a suspected nuclear facility in Syria in 2007.  You might not remember the resounding international condemnation of this attack or the Security Council resolution declaring that Israel had violated the UN charter—because none of this occurred.  The world was simply silent.  True, no one declared that Israel had acted lawfully, but no one condemned Israel, either.  What should we make of this?  It has some significance, as I will discuss shortly, but it doesn’t establish that anticipatory self-defense is lawful.

Why don’t states accept a broader definition of self-defense?  The argument in favor of such a definition is straightforward.  Some states can become major threats long before they launch an attack.  If other states are not permitted to take military action against them at an early stage, they may not be able to defend themselves until it is too late.  This argument is not a bad one, but I suspect that the reason that states have not accepted this argument is that a broader definition of self-defense would be easy to manipulate, and so would end up gutting the prohibition on use of force.  Perhaps also they believe that the Security Council can step in if such a situation occur, and use its legal authority to counter the threat.  One can see why these views would be of cold comfort for the states that are being threatened.

2.  The consequences.

It is a mistake in international law, as in domestic law, to stop with the black letter.  Clients care about the consequences of violating the law, not the mere fact of it.  When Israel attacked the Osirak nuclear facility in Iraq in 1981, it was universally condemned for its violation of international law.  But nothing happened after that.  The Security Council did not try to sanction Israel, nor did any country of any importance, as far as I know.  As I mentioned above, there was no international response to the attack on Syria in 2007.  Nor was there a response to the recent (alleged) Israeli attack on a convoy in Sudan.  Some violations of international law—like some violations of domestic law—do not result in punishment.

There is no doubt that an attack on Iran would be condemned internationally, including possibly by the United States.  But even if the United States condemned the attack and joined a Security Council resolution condemning the attack as it did after the Osirak incident, the United States would not permit the Security Council to impose sanctions on Israel, and it is hard to imagine there would be much enthusiasm for such a move among other states anyway.  Nor does it seem likely that states would independently try to impose sanctions on Israel, or that any state would try to prosecute Israeli officials for aggressive war, which for various reasons remains a problematic international crime.  Neither Israel nor Iran is a party to the International Criminal Court (which in any event does not yet have jurisdiction over the crime of aggressive war), and the United States would block a Security Council referral to the ICC even if some basis of jurisdiction could be devised.  The consequence of an attack would most likely be diplomatic isolation of some sort, for some period of time, and (further) damage to Israel’s international reputation.  Whether the benefits of an attack outweigh this cost is a question that only the Israelis can answer.